Legal experts say TMT ruling likely to impact future cases

Legal experts say TMT ruling likely to impact future cases
State Senator Sam Slom
State Senator Sam Slom
David Callies
David Callies

BIG ISLAND (HawaiiNewsNow) - Legal analysts say Wednesday's unanimous ruling by the Hawaii Supreme Court to revoke a permit for the Thirty-Meter Telescope because the state Land Board failed to follow due process procedures will affect future cases and litigation.

One issue that has already come up is the validity of the arrests made on Mauna Kea during mass protests to prevent TMT crews from reaching their construction site on the summit.

Several protesters appeared before a Hawaii Island judge in South Kohala on Thursday asking that their cases be dismissed in light of the state Supreme Court ruling. However, defendants were told they would have to file for a motion to dismiss because there has been no other direction from the state Attorney General's Office.

Another question being raised is the potential consequence of the Supreme Court's ruling on Hawaii's business reputation.

"When the state of Hawaii makes a contract, you can't depend on them because we don't know if the project is ever going to go through," said Republican state Sen. Sam Slom, who represents Hawaii Kai.

The Thirty Meter Telescope controversy has spurred comparisons to the Superferry failure.

The passenger and vehicle inter-island shuttle was plagued by protests and legal concerns from the very beginning -- and was only operational for less than a year and a half. Service was suspended after the Hawaii Supreme Court ruled the Superferry needed to complete an environmental impact statement and a state law that would allow it to operate without one was unconstitutional.

"Here again is a continuation of the state screwing up and the impact is going to be of course on the taxpayers and the business climate and how we're either taken seriously or not seriously around the world. That's going to hurt us," said Slom. "It really is tragic, because whether or not we can recover from this, I would say is 50-50 at best at this point -- and if we lose this we lose many more future opportunities in other fields."

Slom blames the Supreme Court ruling on attempts to take shortcuts -- but others say it's not quite that simple.

"It is very difficult to go through a complicated process like the University and TMT folks did without falling afoul of something. I'm not saying that this wasn't pretty significant. The justices were convinced that the cart went before the horse. You guys decided and then you held your hearing," said David Callies, a University of Hawaii at Manoa Kudo Law Professor.

Legal analysts say the Supreme Court decision could certainly impact future cases -- potentially even ongoing litigation regarding a telescope under construction on Haleakala.

At the very least, if TMT officials decide to reapply for their permit and go through the contested case hearing again, Callies says the justices' minority opinion could change the outcome this time around.

"Two concurring justices said we think you screwed up on Native Hawaiian rights and we think you screwed up on the public Ttrust, so there's no guarantee that the same decision would come out. And so going forward, it's going to be something of a different ball game," Callies said.

It's still unclear what telescope officials will decide to do. TMT's Executive Director told Hawaii News Now on Wednesday they're still assessing their next steps.

In the meantime, the Attorney General's office said Thursday that TMT construction equipment already on Mauna Kea does not have to be removed because it falls under a valid sublease.

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